1
Fair Work Act 2009
s.604 - Appeal of decisions
Leigh Foyster
v
Bunnings Group Limited
(C2017/3685)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT BINET
COMMISSIONER CRIBB
SYDNEY, 29 AUGUST 2017
Appeal against decision [2017] FWC 1905 of Commissioner Ryan at Melbourne on 23 June
2017 in matter number C2016/6478.
Introduction and background
[1] Mr Leigh Foyster has lodged an appeal, for which permission to appeal is required,
against a decision of Commissioner Ryan issued on 23 June 20171 (Decision) in which the
Commissioner declined under s.366(2) of the Fair Work Act 2009 (FW Act) to extend time to
Mr Foyster to file a general protections dismissal application under s.365 of the FW Act. The
application concerned Mr Foyster’s dismissal from his employment with Bunnings Group
Limited (Bunnings).
[2] Section 366(1) establishes a time limitation for the lodgment of a general protections
dismissal application in the following terms:
366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are
exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
1 [2017] FWC 1905
[2017] FWCFB 3923
DECISION
E AUSTRALIA FairWork Commission
[2017] FWCFB 3923
2
(c) prejudice to the employer (including prejudice caused by the delay);
and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
[3] Mr Foyster filed his general protections dismissal application on 31 October 2016. In
his application, Mr Foyster contended that although he was dismissed by way of a letter from
Bunnings dated 2 September 2016, the dismissal only took effect from 10 October 2016
when, after having been overseas until 5 October 2016, he actually became aware of and read
the letter. In the alternative, he sought an extension of time under s.366(2). Bunnings’ position
was that the date that Mr Foyster’s dismissal took effect was either 13 September 2016, being
the date that Bunnings sent an email to Mr Foyster attaching a copy of the 2 September letter,
or 24 September 2016, being the date that Mr Foyster conceded he had checked his emails
whilst overseas and replied to an earlier email from Bunnings, or 27 September 2016, when a
further email was sent to Mr Foyster by Bunnings attaching the 2 September letter, or such
other date by which Mr Foyster should have had a reasonable opportunity to be aware of his
dismissal. Bunnings opposed the grant of an extension of time.
The Decision
[4] In the Decision, the Commissioner, although accepting that the first time Mr Foyster
actually knew he had been dismissed was 10 October 2016, when he first opened and read the
letter of 2 September 2016, characterised the issue for determination as being when Mr
Foyster had a reasonable opportunity of knowing the contents of the dismissal letter which
had been emailed to him. For the purposes of s.366(1) of the FW Act, the Commissioner said
that the answer to that question would determine the date upon which the dismissal took
effect.2
[5] The Commissioner concluded that it was reasonable to accept that Mr Foyster had the
ability to access his email account following his return from overseas on the dates 6, 7, 8 and
9 October 2016 and therefore had a reasonable opportunity of knowing that he had been
dismissed from at least 6 October 2016.3 Mr Foyster’s application was therefore lodged
beyond the 21-day time limit prescribed by s.366(1)(a)4 (by four days). Having concluded
thus, the Commissioner considered whether there were exceptional circumstances which
would warrant the grant of an extension of time, taking into account the factors at s.366(2)(a)-
(d)5 of the FW Act.
[6] In respect of s.366(2)(a), the Commissioner found that there was nothing in Mr
Foyster’s explanation for the reasons for the delay which was exceptional or out of the
ordinary – he simply did not check his emails when he could have.6 The Commissioner found
2 Decision at [27]
3 Decision at [26]
4 Decision at [27]
5 The Commissioner found that s.366(2)(e) was not a relevant consideration as there were no other persons in a like position
to Mr Foyster.
6 Decision at [36]
[2017] FWCFB 3923
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s.366(2)(b) to weigh in Mr Foyster’s favour, in that it appeared from the evidence that Mr
Foyster had taken steps to actively dispute an earlier attempt at termination made by
Bunnings on 6 May 2016, and because Bunnings, during the course of the matter, abandoned
its position that termination had occurred on this date.7 In respect of s.366(2)(c) and (d), the
Commissioner found these to be neutral considerations.8
[7] The Commissioner’s overall conclusion was that on balance he was not persuaded that
there were exceptional circumstances justifying an extension of time.9
Notice of appeal and submissions
[8] In his Notice of Appeal Mr Foyster stated:
“1. The Commissioner erred in finding that the date of dismissal was 6 October
2016. The Commissioner should have found that the date of dismissal was 10
October 2016, such that the appellant did not require an extension of time.
Specifically, the Commissioner misapplied obiter in Ayub v NSW Trains [[2016]
FWCFB 5500] by interpreting references to having a “reasonable opportunity” to
receive a dismissal letter as, in effect, deeming receipt of the letter upon an
employee in circumstances where they were not aware of it and had not
deliberately or recklessly avoided receipt of it.
2. If the date of dismissal was 6 October 2016:
(a) the Commissioner erred in finding that there were no exceptional
circumstances where, on his findings the appellant was unaware for 3 of
the 21 days in which he had to file a claim (and part of the 4th, plus the day
of dismissal itself) that he had been dismissed;
and
(b) the Commissioner erred in finding that the absence of prejudice to the
respondent was a neutral value in any consideration as to the existence of
exceptional circumstances.
[9] In relation to the first ground of appeal, Mr Foyster contended that it was in the public
interest for the Commission to grant permission to appeal because it would provide an
opportunity to clarify the issue of what it means to have had a “reasonable opportunity” to
read an email or letter communicating a dismissal, an issue which had not been previously
decided. Mr Foyster submitted that this issue arose in the context that the Commission had
wrongly applied the Full Bench decision in Ayub v NSW Trains10 to effect an analogue of the
postal delivery rule, so that mere receipt of an email communicating dismissal was sufficient
to constitute a reasonable opportunity to read it. In relation to the second ground, Mr Foyster
submitted that it was in the public interest to clarify whether, if an employee genuinely and
7 Decision at [37]
8 Decision at [39] and [40]
9 Decision at [41]
10 [2016] FWCFB 5500, 262 IR 60
[2017] FWCFB 3923
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innocently did not know that he or she had not been dismissed for a portion of the 21-day
period, this constituted an exceptional circumstance for the purpose of s.366(2). He also
submitted that the grant of permission would provide the Commission with an opportunity to
clarify whether the absence of prejudice to the employer should be treated as a neutral
consideration or, as a factor weighing in favour of granting an extension of time. In this
respect, he contended that the Decision, which treated the absence of prejudice as a neutral
consideration, was in conflict with the Full Bench decision in Hambridge v Spotless Facilities
Services Pty Ltd11, where the absence of prejudice was treated as a factor weighing in favour
of the grant of an extension of time.
Consideration
[10] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Fair
Work Commission’s (Commission) powers on appeal are only exercisable if there is error on
the part of the primary decision maker.12 There is no right to appeal and an appeal may only
be made with the permission of the Commission. Section 604 provides:
(1) A person who is aggrieved by a decision:
(a) made by the FWC (other than a decision of a Full Bench or an Expert
Panel); or
(b) made by the General Manager (including a delegate of the General
Manager) under the Registered Organisations Act;
may appeal the decision, with the permission of the FWC.
(2) Without limiting when the FWC may grant permission, the FWC must grant
permission if the FWC is satisfied that it is in the public interest to do so.
Note: Subsection (2) does not apply in relation to an application for an unfair dismissal
(see section 400). (2) A person may appeal the decision by applying to the FWC.
[11] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied
that it is “in the public interest to do so”. The task of assessing whether the public interest test
is met is a discretionary one involving a broad value judgment.13 The public interest is not
satisfied simply by the identification of error14, or a preference for a different result.15 In
GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified
some of the considerations that may attract the public interest:
11 [2017] FWCFB 2811
12 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and
Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
13 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch
(2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Alllied Mining Services Pty
Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
14 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27]
15 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied
Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review;
Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe;
Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]
[2017] FWCFB 3923
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“... the public interest might be attracted where a matter raises issue of importance and
general application, or where there is a diversity of decisions at first instance so that
guidance from an appellate court is required, or where the decision at first instance
manifests an injustice, or the result is counter intuitive or that the legal principles
applied appear disharmonious when compared with other recent decisions dealing with
similar matters...”16
[12] Other than the special case in s.604(2), the grounds for granting permission to appeal
are not specified. Considerations which have traditionally been adopted in granting leave and
which would therefore usually be treated as justifying the grant of permission to appeal
include that the decision is attended with sufficient doubt to warrant its reconsideration and
that substantial injustice may result if leave is refused.17 It will rarely be appropriate to grant
permission to appeal unless an arguable case of appealable error is demonstrated. This is so
because an appeal cannot succeed in the absence of appealable error.18 However, the fact that
the Member at first instance made an error is not necessarily a sufficient basis for the grant of
permission to appeal.19
[13] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant
for an extension.20 A decision as to whether to extend time under s.366(2) involves the
exercise of a discretion.21
[14] An application for permission to appeal is not a de facto or preliminary hearing of the
appeal. In determining whether permission to appeal should be granted, it is unnecessary and
inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.22
[15] Mr Foyster’s first ground of appeal was founded on the contention that the
Commissioner misapplied the Full Bench decision in Ayub v NSW Trains.23 That decision
involved an analysis, in relation to the requirement in s.394(2)(a) that an unfair dismissal
remedy application be made “within 21 days after the dismissal took effect”, as to when a
dismissal could be said to have taken effect for the purpose of the operation of the prescribed
time limitation. The Full Bench’s primary conclusion was as follows:
“[36] Having regard to the language, purpose and context of s.394(2)(a), we do not
consider ... that the provision should be interpreted or applied so that the 21-day
period to lodge an application for an unfair dismissal remedy could begin to run
before an employee who has been dismissed at the initiative of the employer became
16 [2010] FWAFB 5343, 197 IR 266 at [24] – [27]
17 Also see CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26]
18 Wan v AIRC (2001) 116 FCR 481 at [30]
19 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28],
202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar
Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB
1663, 241 IR 177 at [28]
20 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288 at [21]
21 Halls v McCardle and Ors [2014] FCCA 316
22 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
23 [2016] FWCFB 5500, 262 IR 60
[2017] FWCFB 3923
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aware that he or she had been dismissed, or at least had a reasonable opportunity to
become aware of this....”
[16] The Full Bench went on to say:
“[42] We likewise consider that the mere delivery of a document to an employee’s
usual address notifying the employee of his or her dismissal would not of itself
constitute communication of that dismissal, and concomitantly the time at which the
dismissal took effect, if the circumstances were that this did not constitute a
reasonable opportunity for the employee to actually read the document. That is, we do
not consider that s.394(2)(a) requires the strict application of a “postal delivery rule”
where the employee has a legitimate explanation for not being able to read the
document immediately upon delivery. The circumstances in which this may be the
case are undoubtedly manifold, but for example if an employee is on an approved
period of annual leave and is holidaying away from home when a dismissal letter is
delivered, there is no reason to conclude that the date of dismissal is the date of
delivery and not when the employee returns home and first has a reasonable
opportunity to read the letter.”
[17] It may be accepted that the reasoning in Ayub is equally applicable to s.366(1)(a),
since there is no difference in the language used and it is apparent that the provision has
essentially the same legislative purpose as s.394(2)(a). However we do not accept Mr
Foyster’s contention that what constitutes a “reasonable opportunity” to read correspondence
or an email communicating a dismissal requires further elaboration at the Full Bench level. As
the Full Bench made clear in Ayub, there may be a range of circumstances where an employee
has a legitimate explanation for not reading a letter or email communicating a dismissal
immediately upon delivery, and we do not consider that it would be a useful or indeed
legitimate exercise in an appeal for a Full Bench to promulgate something in the nature of a
decision rule concerning this issue. Each case of this nature will necessarily turn on its own
facts, and it is not possible to establish guiding principles anticipatory of the various factual
scenarios that might conceivably arise. In this case, the Commissioner considered in detail the
factual circumstances of Mr Foyster’s case, including that Mr Foyster had read an email
concerning his employment while overseas, and that he had no explanation for not reading the
email upon his return home other than that he did not regularly check his emails.24 The
Commissioner’s factual inference that “The only conclusion that can be drawn from the
evidence of the Applicant is that he could have but chose not to check his emails between 5
October 2016 and 10 October 2016”25 was not challenged by Mr Foyster, and clearly
supported the conclusion that he had a reasonable opportunity to read Bunnings’ dismissal
letter at the time of or soon after he arrived home from his overseas trip. There is no basis for
Mr Foyster’s contention that the Commissioner erred by applying something in the nature of a
postal delivery rule, contrary to the reasoning in Ayub: it is clear that in the Decision the
Commissioner, having found that Mr Foyster did not actually become aware of his dismissal
until 10 October 2016, directly addressed the question of whether he had a reasonable
opportunity to become aware it before then.
[18] In relation to the second ground, the determination of the question of whether there
were exceptional circumstances attending Mr Foyster’s delay in lodging his application
24 Decision at [25]-[26]
25 Decision at [26]
[2017] FWCFB 3923
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because he did not have actual knowledge of his dismissal until four days after his imputed
date of dismissal involved the exercise of a discretionary judgment on the part of the
Commissioner. Mr Foyster’s lack of knowledge of the dismissal for that period was taken into
account by the Commissioner, as was the lack of any out-of-the-ordinary reason for Mr
Foyster’s failure to lodge his application within the remainder of the 21-day period.26 No error
is apparent in the exercise of that discretion. That the Commissioner treated the lack of any
prejudice to Bunnings as a neutral factor rather than one favouring the grant of the extension
does not appear to us to have been a determinative matter, given the absence of any
identifiable exceptional circumstances in Mr Foyster’s case. That is to be contrasted to the
decision referred to by Mr Foyster, Hambridge v Spotless Facilities Services Pty Ltd27, where
a Full Bench that was re-determining an application for an extension of time found that the
reasons for the delay in that case were “highly unusual and ... largely beyond the control” of
the applicant.28
[19] We do not consider that Mr Foyster’s appeal raises any issue of legal principle or
general applicable, or that the Decision was attended by sufficient doubt to warrant its
reconsideration or manifested any injustice or was counter-intuitive, such as to require the
grant of permission to appeal in the public interest or to justify the grant of permission on
discretionary grounds. Permission to appeal is therefore refused.
VICE PRESIDENT
Appearances:
T Lethbridge on behalf of Leigh Foyster.
T Page on behalf of Bunnings Group Limited.
Hearing details:
2017.
Sydney:
8 August.
Printed by authority of the Commonwealth Government Printer
Price code C, PR594862
26 Decision at [32]-[36]
27 [2017] FWCFB 2811
28 Ibid at [38]
OF THE FAIR WORK MISSION THE
